Which Is A Bigger Issue? Uncertainty About Patents Or Invalid Patents Harming Innovation?
from the take-your-pick dept
We see plenty of problems in the new patent reform legislation being pushed in Congress -- but the loudest complaints seem to be focused on a few parts of the reform bill that actually make sense. For example, one of the key things that opponents of the bill (pharmaceutical companies, mainly, but also some other organizations that over-rely on patents) are attacking is the change that would make it easier to challenge the validity of a patent after it's been granted. The complaint, apparently, is that this would add some uncertainty to companies that hold patents -- that may be true, but there's very little that's certain in the business world and most business learn to adapt and survive. The more important thing is to look at the flip side and compare. Is it worse to have business face some uncertainty -- or is it worse to have a bunch of bad patents out there tying up actual innovators in wasteful lawsuits? If the patents really are valid then they should be able to survive any such challenge -- and the patent owners should be comfortable that any such challenge is unlikely to succeed. In other words, there really shouldn't be that much uncertainty unless the patents are questionable in the first place.
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Can you enforce a rule if it's not known?
My research seems to point to no. It costs too much to perform patent searches, and the even idea of having a patentability doesn't seem to be, currently anyway, a fair process.
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Re: Can you enforce a rule if it's not known?
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Re: Re: Can you enforce a rule if it's not known?
It costs too much to perform patent searches You ever use google? Seems pretty free to me. http://www.google.com/patents
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Well...
For everyone else invalid patents are the worse problem since patent hoarders can still use an ultimately invalid patent to put real innovators out of business.
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Perhaps next time there should be serious studies performed before Congress passes laws with such far-reaching effects.
Thing is, you could replace the words 'global warming' with so many other topics.... Like legislating stupidity, turning off internet access to an entire country, DCMA to name a few
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They should just pass a law...
That would take care of any lawsuits due to invalid patents and those suing would make damn sure that their patents were actually valid.
Chris.
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Vonage asks the same question
http://www1.freetocompete.com/patent_an_orange.php
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Enough
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patents?
We need them, or no one would innovate. But as with copyrights and URLs, some people get them and sit on them hoping someone will violate them so they can sue that person/company.
IMO, OTTOMH, we should reform the laws so that any restrictions on innovations (I use these words to encompass all of these areas) should have product development in process with-in 2 years of the patent being granted or the restricted material becomes "open-source" (as-it-were). If no product is on the market with-in 5 years, and no license is granted, even with development, it is open to everyone until the original developer has a product hit the market. Then the patent has to be reviewed to be extended for it's original life-time.
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Re: patents?
If they weren't such a problem to innovation and technology we wouldn't keep bringing it up!
"We need them, or no one would innovate."
Yeah sure, and before patents no-one innovated. Also no-one must innovate in the many places that still don't use patents. This kind of basic economics opinion about patents is obviously false as there are too many real world examples proving otherwise.
We don't NEED patents period. With the pace of technology and innovation that takes place nowadays they just don't make any sense. On top of that they have become so wide in scope they don't even operate how they are intended.
I know a guy who changed the size of just one part in a standard heat pump as an experiment. He found by increasing the size of just this one part he could increase its efficiency by over 300%. He thought he would be rich until he went and patented it. Guess what? Already patented and the company that did has no interest in developing it or bringing it to market.
This is just one of a million examples of how patents do the exact opposite as they are intended. Nowadays they just keep the fat cats of industry big and lazy. They control technology so they can innovate at their own pace while reaping the most profits they can along the way. Great for profits but bad for everything and everyone else.
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Pharma
If it becomes easier for pharma patents to be overturned, expect big changes in the industry and other legislation to compensate. Don't be surprised if your "cure" breaks more than it fixes.
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Re: Pharma
I've always doubted every single thing "big pharma" ever said about the cost of developing drugs and how long it takes to recoup their investment and to make a "fair" profit.
Is it possible they're lying about absolutely everything, just to make more obscene profits than they are already making?
Nah! They wouldn't lie to us, would they?
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Re: Pharma
Do you ever stop to ask why it costs $1b? People keep making the assumption that it always needs to cost $1b when that need not be the case.
If it becomes easier for pharma patents to be overturned, expect big changes in the industry and other legislation to compensate. Don't be surprised if your "cure" breaks more than it fixes
It may break some of the way the pharma industry does business, but it should open up tons of opportunities for *healthcare* to improve. Too many people assume that pharma is healthcare, when right now pharma is doing a great deal to block real healthcare advances in non-pharma areas.
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Re: Re: Pharma
First there's payroll and operations covering the search and research on the particular compound. Then there are preliminary tests on non-human subjects. Then there are three phases of trial, each required by and subject to regulation by the FDA. The regulatory phases can cost well over half a billion dollars.
As it is, only big pharma have the resources right now to take drugs through the regulatory approval process. If you drastically reduce the option value of a drug going to trial by reducing patent protection, then you better be ready to change the regulatory burden to compensate. Otherwise, you will halt the production of new drugs for use in this country.
It may break some of the way the pharma industry does business, but it should open up tons of opportunities for *healthcare* to improve
Big claims require big proof. What about the patent process prevents those "tons of opportunities" from being open right now?
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Re: Re: Re: Pharma
Bingo.
Shouldn't that raise some questions?
Big claims require big proof. What about the patent process prevents those "tons of opportunities" from being open right now?
A new medical *device* or *technology* currently needs to go through the same regulatory process as a pharma, even if it is extremely different from a drug and shouldn't require the same sort of approval process. There are all sorts of preventative care technologies that aren't coming to market because of this. If you removed patent protection and forced companies to start thinking about *healthcare* instead of just pharmaceuticals, there would be a lot more investment into those other arenas. As it is, we've artificially pumped up the value of pharma patents, meaning that healthcare is way too focused on pharma rather than more promising technology improvements.
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Re: Re: Re: Re: Pharma
It is possible we have an onerous approval process for medicines and devices. Then again, everyone has heard the tragedy of inadequate testing on thalidomide that resulted in thousands of children being born with birth defects and tens of thousands of people affected with peripheral neuropathy. (People who have heard the story don't realize that very few of these birth defects happened in the US because the drug was not yet approved for use in the US).
We can take devices out of that approval process. Are you willing to leave it to corporations to determine when enough testing is enough? You know they will make their determination based on optimizing economic payoff. You also know that it will increase risk-taking behavior by companies. Of course, they pass the risk along to you too. They risk their phat paycheck; You risk your life. Are you happy to have the CFO of some company determine the amount of risk involved in treating your illness?
It seems the alternative to tight regulatory approval is a greater numbers of injuries, deaths, medical board hearings, and court actions? You can pay the cost upfront or your can pay it on the back end. It all depends on how you want to spread the risk and consequences.
There are all sorts of preventative care technologies that aren't coming to market because of this.
True. But this might be a good thing, unless you yearn for the days of snake oil and leeches.
If you removed patent protection and forced companies to start thinking about *healthcare* instead of just pharmaceuticals, there would be a lot more investment into those other arenas.
Whether this is true does not follow from your argument. Regulatory approval and patents are different, mostly orthogonal, issues.
As it is, we've artificially pumped up the value of pharma patents, meaning that healthcare is way too focused on pharma rather than more promising technology improvements.
I agree that the regulatory approval process increases the price companies charge for patented medicines. But it also increases the value of those medicines by requiring they have been proven safe and effective.
If you want cheaper treatment, you can find it. Go to Mexico. There you will find alternative medicines and treatments which are illegal in the US. In my 50+ years of hearing stories about such alternatives, I've never heard a verifiable and provable success story. If what you think will happen when regulation is removed is true, then we should have mountains of documented and provable cases of alternative treatments in Mexico.
I don't think healthcare is "way too focused on pharma". But I agree that if you want fewer medicines developed, eliminating patents is a great way to achieve your goal.
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Re: Re: Re: Re: Re: Pharma
I've worked in pharma before and they seem to use the patent methodology as an excuse to maintain their market, and stifiling competitiors, and innovation.
Sad thing is that these companies just need to focus focus on maintaining lower operational costs. That's where the real money can be saved in any company- operations. I read a quote some time ago that said a 1% decrease in operational costs can increase profit 10% In other words, work smarter, not harder.
When a company manufactures a $300,000 medical product (XRay) that costs $14,000 to make is ludacris. Granted there are specific requirements from the FDA, and other legal authorities, but does that necessitate a 21x markup on the product, especially if it's considered to be a requirement for a person to be able to live?
Patents in medical = everyone looses. The Doctors loose (FUD from lawsuits), the patients loose (FUD of living), the insurance company loose, we pay higher premiums, all because, just in general, those few companies focus on maintaining operational costs, through the use of monopoly instead of trying to work on consumption costs within the organization. So of course, there will be a good deal of discent from companies with large patent portfolios, and they will fight tooth and nail, and lobby strongly against it, because Growth is always good, but with all the technology today, outdated processes probably don't need to be maintained anymore, or they could be consolidated, etc.
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Re: Re: Re: Re: Re: Pharma
Very impressive squik. Bring out one extremely emotional example while avoiding the actual point.
I never said that testing wasn't important for health. I was simply saying that the current process for testing is set up in way where there are simply no incentives to make the process more efficient, while being as (if not more) useful in determining the safety of the drug or device.
I'm not saying to get rid of testing. I'm saying it's time we made the testing process better.
We can take devices out of that approval process. Are you willing to leave it to corporations to determine when enough testing is enough?
Again, I never said to take them out of the approval process. I'm just saying that devices and technology testing should be different than pharma. Read "The End of Medicine" to get an idea of how much medical technology has been totally stifled due to the pharmaceutical industry's focus on big profits and how that's tied the hands of the FDA when it comes to approving technology.
It seems the alternative to tight regulatory approval is a greater numbers of injuries, deaths, medical board hearings, and court actions?
No, the alternative is to have *better* more cost effective regulatory approval.
True. But this might be a good thing, unless you yearn for the days of snake oil and leeches.
You do realize that pharmaceuticals these days are merely a notch above that? I'm talking about getting beyond pharmaceuticals to real solutions rather than "let's just shove some chemicals into people and hope that it helps them."
Why aren't we working on much better tech and biotech solutions that are much more directed and effective than drugs? Because the pharma industry's profits are overinflated due to patents. On top of that, the incentives of our current insurance system plays right into pharmas hands.
Whether this is true does not follow from your argument. Regulatory approval and patents are different, mostly orthogonal, issues.
In what world? Certainly not the one we live in.
I don't think healthcare is "way too focused on pharma". But I agree that if you want fewer medicines developed, eliminating patents is a great way to achieve your goal.
Yes, that's why Italy had such a thriving pharma industry without patents... But we'll just ignore that.
The bigger point is that you make a huge mistake here. I don't care whether there are more or less medicines developed. I want *better healthcare* which is not the same thing as "more medicine." You seem to think that more drugs automatically means better healthcare, and yet that's not the case at all -- especially with the incentives that the current patent system puts on pharma companies.
Right now, the incentive is not to provide better healthcare, but to get the next monopoly on making a slight change to lifestyle drugs like allergy medicines and ED. That's not about better healthcare.
If the incentives were focused on actually providing better healthcare and actually coming up with real solutions to healthcare problems, rather than "more medicine" perhaps we'd actually be getting somewhere.
People like you get so focused on pharmaceuticals as the answer to all medical problems (and the patent system as the reason that pharma exists) that you miss the bigger picture.
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Re: Re: Re: Re: Re: Re: Pharma
When you are talking about people dying, some people will get emotional. The pharmaceutical industry is about life, death, and quality of life. Such discussions will always be emotional to someone. But, I trust you can move beyond the emotion and concentrate on the facts, such as birth defects and long term disability. Those facts have to be dealt with. It was exactly the thalidomide incident that resulted in the changes to the FDA approval process that required proving both safety and efficacy instead of just safety.
I'm not saying to get rid of testing. I'm saying it's time we made the testing process better.
Nice idea. So far you've only advocated getting rid of patents, but not talked at all about what changes might make the approval process cheaper while maintaining or improving its results.
Read "The End of Medicine" to get an idea of how much medical technology has been totally stifled due to the pharmaceutical industry's focus on big profits and how that's tied the hands of the FDA when it comes to approving technology.
I'm sure there are incentives in every industry that run counter to what might be the best public policy. But, getting rid of physicians by employing more technology, as is the thesis of "The End of Medicine", is not going to work.
I want *better healthcare* which is not the same thing as "more medicine."
You are right. It isn't the same thing. Are you going to forego using medicine as a princpled stand?
If the incentives were focused on actually providing better healthcare and actually coming up with real solutions to healthcare problems, rather than "more medicine" perhaps we'd actually be getting somewhere.
There is more than just pharma. Like it or not, medicine is practiced between physician and patient. You'd do yourself a world of intellectual good to actually look into an industry before repeating criticisms written by dilettantes.
People like you get so focused on pharmaceuticals as the answer to all medical problems (and the patent system as the reason that pharma exists) that you miss the bigger picture.
Yeah, "people like me". Consider sticking to the issues. Your pattern of ad hominem attack when you can't support your arguments doesn't make your arguments any better.
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Re: Re: Re: Re: Re: Re: Re: Pharma Flack
It's very boring but the idea seems to be, we're all so stupid that if something is repeated often enough, we'll eventually end up believing it.
There comes a time when this makes sense:
Don't Feed the Troll!
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Re: Re: Re: Re: Re: Re: Re: Pharma
Indeed. That wasn't the point of this discussion... and it's a long discussion. I'll be talking a lot more about it soon, but I'm not going to lay out all the details here in the comments. But to suggest that I don't have an idea about would be wrong.
But, getting rid of physicians by employing more technology, as is the thesis of "The End of Medicine", is not going to work.
You apparently have not read the book. Come back and discuss after you have.
You are right. It isn't the same thing. Are you going to forego using medicine as a princpled stand?
You really didn't just say that, did you? Did I say that all medicine was bad? Did I say that medicine was the opposite of healthcare? No.
Why would you assume that I said that? I simply said there's more to medicine than just pharma. If you said there's more to law than just corporate law, would that mean I should say "fine, will you do without corporate law?" No. To imply that it would makes no sense. Why would you make such an argument?
Sorry, squik, if you're going to make statements like that, it's not worth responding to you. When you first showed up here, you made some interesting arguments that kicked off some interesting discussions, but lately I'm beginning to wonder if you're just trolling.
There is more than just pharma. Like it or not, medicine is practiced between physician and patient. You'd do yourself a world of intellectual good to actually look into an industry before repeating criticisms written by dilettantes.
Wait, you just repeated my argument back to me (that the industry is about more than pharma) and then accused me of not knowing about the industry? I'm not quite sure how that works.
And don't make assumptions that are going to get you in trouble.
Consider sticking to the issues
Which issue did I avoid? You were the one who got focused on pharma as being the key to healthcare, and I pointed out why that was a mistake. Your response was to (a) agree with me and then tell me I didn't know what I was talking about (even though you were agreeing with me) and (b) to claim that I said something I didn't and make a cheap stunt out of it.
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Re: Pharma
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Even if you think the current patent system is bad, there are still processes in place that regulate it's "absoulte power" that anti-patent people complain about. For example, even though vonage lost their patent lawsuit, they still can sign up new customers while prior art is tested/reviewed.
Also, as Mike mentioned, any problems that you think the current patent system have, "most business learn to adapt and survive" with them.
The current system is not perfect, but no system will ever be. For example, it will never be possible to create a perfect black and white "obvious" test.
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If you really want to be scared, carefully read the package insert on any prescription drug. Pay particular attention to:
- the numbers of people in the trial (very few)
- they compare the effects of the drug against placebo, never against existing competitive products (making placebo look like a wonder drug)
- the "precautions" section
- the "warnings" section
- the "drug interactions" section
- what they admit they did not study - children, men, women, how long the study lasted, etc.
According to the AMA Journal 10+ years ago, 50% of pharma companies sales goes to promotion - 50% of every dollar they receive!
This is in an industry that shouts that it is there for the benefit of sick people.
Tell me another industry that spends that percentage.
I do not begrudge them a profit, by the way. I'm just tired of the BS and the people who blindly believe anything they are told.
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Ideas should not be patentable
My employer has hundreds of software patents some of which list me as an inventor. I'm not aware of a single case in which my employer has sued anyone for infingement. The patents they have a for defensive purposes. Getting all those patents is a big waste of time and money but the patent lawyers love it.
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Re: Ideas should not be patentable
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Ah, a hardware patent is still just "an idea", but that it is just implemented using hardware. Software patents are the same as hardware patents, just that that need/are implemented in software that produce a useful purpose.
But keep in mind that certain ideas can only be implemented in hardware and other ideas need to be implemented in software. For example, you can't build a car using software that will physically move you somewhere. Just like you can't build a web browser program using hardware. Two very useful ideas, just impossible to implement using the opposite technology.
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hardware
Sure, you can. It's just not convenient but you could certainly build a dedicated device for internet browsing where the logic was hardwired.
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I need a history lesson
It's not around to advance science or the arts. Remember, the corporate entity was created after the patent system...
So.. when corporate entities emerged, did they create it with the understanding that it could own intellectual property, and has the patent process and program maintained the original goals in light of introduction of the corporate entity?
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RE:
The Eniac was nothing more than a giant, tube driven calculator. There was no storage device to save your software. The logic WAS hardwired, literally. Programmed by changing wired connections
between banks of tubes. The software was mounds of paper on which the "programs", or rather connection diagrams, were written.
Modern computers do the exact same thing. Just with more transistors instead of vacuum tubes.
Hardware and software should not be viewed as seperate entities. Hardware is the base for all software. Without hardware software cannot exist. You can in fact make software that will move you from one place to another, using hardware as a means for the actual moving.
Back to the patent issue.
I agree all pantents are patents on ideas, wether hardware or software.
I also agree that the only thing a patent does is to allow inventors to sit on their laurels.
Let's say I invent somthing that would make your life better. I also get a patent on this great new invention, an overly broad one. Let us also say that everybody wants one.
So I start making lots of money on my great invention. Pretty soon other people want in on the action. Not knowing about googles patent search function, A competitor brings a slightly better, but remarkably similar product to market. Knowing they have infringed on my patent, I get to sue and put them out of businees.
Now with my compitition out of the way I get to keep 100% of the market share. I'm fat and rich screw the little guy.
Now lets say there is no such thing as a patent and everybod is free to copy my invention. After a short while on the market my invention is copied 100 times. You can now buy it from kids on the corner who have moved on from just selling lemonade.
Since my invention is now being sold on the corner for 50 cents. I can no longer make money selling it.
But of course I need to make money. In order to do that I must make my invention better before my 12 year old compitition.
Wow, what just happened? I was FORCED to innovate! Amazing huh.
Really simple. If I want to make money I must make my product better. Really simple idea. No hiding behind the patent to stay in business.
Who wins in this scenario. You, the consumer.
Well the 12 year old selling lemonade too. He doesn't have to spend his day squeezing lemons anymore.
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Re: RE:
You could just as equally say that a patent could equally promote innovation by FORCING competitors to find a way to design around the patent to produce the same solution and steal the inventors sales. And maybe the redesign will even have a side effect of being better then the original idea! ;)
And guess what, this would also FORCE the inventor of the original patent to innovate even more to produce a better solution then the compedator's work-around, because if he didn't all his sales would be lost to the competitors redesign!
So, a patent actually FORCES *BOTH* the inventor and competitors to innovate!!!
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Ideas for patent reform
Have a dual-patent scheme based on Individual vs Corporate filing.
Individuals would have ability for first to file, whereas corporate entities could only recieve first with, first to prototype. This decision is done on the pretense that corporation have resources to create inventions easier than the individual.
This will allow the individual to deterime if the idea is marketable, and create a prototype. Individuals will also be able to recieve, say, 25 year filings, whereas Corporate entities could have up to 50 years, with a review every ten. Because most innovations occur after IP is made into the public domain, this puts internal need to market the IP, rather than horde it like the current system appears to do.
Review Process:
Corporate entities would only be able to extend if they are able to license the IP. Net effect: the company (must) license the IP to 3rd parties. If it fails to license, the product could be put into a 3 year freeze, where the corporate entity must sell the IP to an unaffiliated company, or elect to release into the Public Domain... USPTO would not extend past the first 10 years review.
Formula: The formula would probably need some statisticians input, and include several factors to be long term sustainable. This formula won't work for Qualcomm, for example. But i.e. QtyRequiredLicenses = (Qty of product brought to market using IP by IP Holder) / 100M) So in this situation, for every 100M products, you need one licensor to maintain your patent.
Net effect - Corporations with unused, or blantantly obvious IP have incentive to sell. Corporations will also have incentive to license their portfolio Aaah!
This could potentially spawn new companies, with potential to increase US economy. Also, this would create incentive to sell IP that they are hording.
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Re: Ideas for patent reform
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You have no clue about patents
Just shut up , pleeeeeze
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Re:
You have no clue about patents
Just shut up , pleeeeeze"
But Angry Dud then you would be out of a job, monitoring and posting to this and other tech / patent blogs ...
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There is plenty of analysis written about patents and so-called "patent reform"
Try to read http://www.patentlyo.com for a change, and forget about techdirt
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Patentlyo
If you read patentlyo you might notice that I post over there too.
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Re: Patentlyo
I did notice that some of the comments were signed by you.
My main point was that techdirt became worse than even slashdot - almost zero informed discussion, just an ignorant anti-patent rant
That's why I stopped posting informative comments on techdirt- I just spit here
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Re: Re: Patentlyo
When did you post informative comments here? Angry Dude, I've been asking you for years to post something informative (such as, for example, which patent it is that you keep claiming is so revolutionary, but which you fail to disclose).
If you want to take part in an informed discussion, why not take part by being informative?
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pharma and patents
the next point is that pharma make "cures" according to FDA guidlines which are petroleum based only... thats a law... meaning no natural suppliments can be sold as cures.. even though it is well known and accepted that aloe is a cure for minor burns.. because it is natural no one can claim it as a cure or risk being shut down at the behest of the FDA...
thirdly.. the patent system isnt broke.. its application is.. patents are only supposed to be awarded for ideas that are not obvious and simple in nature... that means the patent for the comb over is technically illegal and should be torpedoed, but it hasnt been.. software and hardware both are patentable and that arguement is moot... the point of patents is to protect innovators for a chance to bring a new idea to market without having a large company stealing their idea and bringing it to market first.. unfortuantely that isnt the case in our system because the legitamacy of patents is more difficult to challenge here... legitimate patents will stand.. phonies will fail.. look to great britians system of patents and see how they have fixed their problems in a similar way..
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Survival of the most valid
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Re:
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I agree.
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KSR
They were pretty gentle with the Court of Appeal - probably because the Court of Appeal had already started to distance itself from its own decisions by complaining that it was not wrong, it had merely been universally misunderstood.
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Re: Ideas for Patent Reform
The thing is that there is no tie back to the sharing of the idea, or licensing it out. However if there was a law that encouraged sharing the idea through licensing, then from my perspective, all needs are met. Right?
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